Return to CALJIC Part 5-8 – Contents
F 8.20 n1 Cultural Background Relevant As To Premeditation/Deliberation.
(See FORECITE F 4.031 n1.)
RESEARCH NOTE: Cultural Defense of False Stereotype? What Happens When Latina Defendants Collide With the Federal Sentencing Guidelines, K.L. Holmquist, 12 Berkely Women’s L.J. 45-72, 1997.
F 8.20 n2 Premeditation/Deliberation: Purposeful Planning, Even If Delusional, Is Sufficient.
People v. Bobo (90) 229 CA3d 1417, 1435-36 [3 CR2d 747], held that purposeful planning, even in the context of a delusional, psychotic system may constitute premeditation and deliberation.
[Research Note: See FORECITE BIBLIO 8.20]
F 8.20 n3 Premeditation/Deliberation: Consciousness Of Guilt: Does Not Prove Degree Of Crime.
The essence of consciousness of guilt evidence is that it shows a fear of apprehension and, hence, is probative of whether the defendant committed the crime. Fear of apprehension, however, while relevant to the issue of whether a crime was committed, does not have any logical relevance as to the degree of the crime the defendant committed. [For a sample limiting instruction, and additional authorities on this point, see FORECITE F 2.06a.]
[Research Note: See FORECITE BIBLIO 8.20]
F 8.20 n4
F 8.20 n4 Error To Instruct Jury That First Degree Murder Does Not Require Proof That Defendant Maturely And Meaningfully Reflected Upon The Gravity Of His Or Her Act.
Although it was stated in Proposition 8 (PC 189)—when abrogating the diminished capacity defense—that the prosecution need not prove the defendant “maturely and meaningfully reflected upon the gravity of his or her act,” it is improper to allow such an instruction as a prosecution pinpoint instruction in a first degree murder prosecution. (Cf., People v. Dunkle (2005) 36 C4th 861, 912-13 [diminished capacity instruction on “mature and meaningful reflection” not required in absence of evidence of mental illness].) The concept of “mature and meaningful” was only implicated by diminished capacity prior to Proposition 8. The concept is of no relevance in post-Proposition 8 cases and it is error to instruct on it. (See People v. Rollo (77) 20 C3d 109, 122-23 [141 CR 177] [prejudicial error to instruct on irrelevant but correct principle of law that creates a substantial risk of misleading the jury to the defendant’s prejudice].) The “maturely and meaningfully” instruction creates a risk of prejudicially misleading the jury because the instruction focuses the jury on a specific factual issue of whether the defendant reflected upon the gravity of his or her act in a manner that was either immature or not meaningful, suggesting that either court-emphasized factor strongly favors first-degree murder. [See Brief Bank # B-832 for additional briefing on this issue.]
F 8.20 n5 Premeditation And Deliberation: Impulsive Behavior Caused By Mental Disorder Is Proper Subject Of Expert Opinion.
In People v. Coddington (2000) 23 C4th 529 [97 CR2d 528] the Supreme Court held that PC 28 and PC 29 do not preclude expert opinion regarding the defendant’s impulsivity even if not given in the context of diminished actuality. “An expert’s opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the mental states of premeditation and deliberation regardless of whether the expert believed appellant actually harbored those mental states at the time of the killing.” (Coddington, 23 C4th at 583.)
F 8.20a
Definition Of Deliberation
*Modify CJ 8.20 when appropriate:
Alternative Form
Deliberation is consideration and reflection upon the preconceived design to kill; turning it over in the mind; giving it second thought.
Although formation of a design to kill may be instantaneous, as quick as thought itself, the mental process of deliberating upon such a design does require that an appreciable time elapse between formation of the design and the fatal act within which there is, in fact deliberation.
The law prescribes no particular period of time. It necessarily varies according to the peculiar circumstances of each case. Consideration of a matter may continue over a prolonged period — hours, days or even longer. Then again, it may cover but a brief span of minutes. If one forming an intent to kill does not act instantly, but pauses and actually gives second thought and consideration to the intended act, [he] [she] has, in fact, deliberated. It is the fact of deliberation that is important, rather than the length of time it may have continued.
Points and Authorities
This definition of premeditation was held to be “clear, definite, understandable and applicable to the facts developed by the testimony” in Fisher v. U.S. (45) 328 US 463, 467 fn 3, and 470 [90 LEd 1382; 66 SCt 1318]; see also Perkins, Criminal Law, 3d ed., Ch. 2, § 1, p. 132, [“the intent to kill must be turned over in the mind and given a ‘second thought.’ [Fn omitted].”
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII.]
F 8.20b
Premeditated and Deliberated Murder:
Specification of Prosecution’s Burden
*Add at end of CJ 8.20:
If you have a reasonable doubt as to whether the defendant formed a clear, deliberate intent to kill which was the result of premeditation and deliberation formed upon pre-existing reflection after weighing and considering the question of killing, the reasons for and against such a choice and the consequences of the choice, then you must give the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder [based on premeditation and deliberation].
OR
If you have a reasonable doubt whether the defendant premeditated and deliberated, then you must give the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder.
Points and Authorities
A criminal defendant is entitled, upon request, to an instruction pinpointing the theory of the defense. (People v. Wharton (91) 53 C3d 522, 570 [280 CR 631].) Such an instruction may “direct attention to evidence from … which a reasonable doubt could be engendered. [Citation.]” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844].) Moreover, the trial court is required to “instruct the jury as to which party bears the burden of proof on each issue…..” (EC 502). Therefore, in a case where a theory of the defense is directed toward raising a reasonable doubt as to the existence of premeditation and deliberation, the defendant should have the right, upon request, to specifically instruct the jury as to the prosecution’s burden regarding the issue of premeditation and deliberation. (See e.g., CJ 2.91 and CJ 4.50; see also People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364] (defendant has the right to a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense”.)
The first instruction above specifically relates the prosecution’s burden of proof to the components of premeditation and deliberation specified in CJ 8.20.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 8.20c
Deliberate And Premeditated Murder:
Deletion Of The Term “Precluding”
*Modify CJ 8.20 ¶ 4 to provide as follows [added language is capitalized; deleted language is between <<>>]:
If you find BEYOND A REASONABLE DOUBT that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition <<precluding>> WHICH NEGATES the idea of deliberation, it is murder of the first degree.
Points and Authorities
Because the deleted language is confusing and uses the term “precluding” which is inherently ambiguous, it could be interpreted by the jury to require the defendant to absolutely preclude the possibility of pre-meditation. It should also be noted that the ambiguity in the term “precluding” might cause the jury to interpret the term as requiring evidence that there was no possibility of premeditation. Since the defendant’s burden is actually much lower (i.e., to leave the jury with a reasonable doubt as to the existence of premeditation), the term “precluding” should be omitted from the instruction. (But see People v. Nakahara (2003) 30 C4th 705, 715.)
The inherent ambiguity of the term “preclude” was recognized by the California Supreme Court in People v. Williams (69) 71 C2d 614, 631-32 [79 CR 65]. In Williams, the court recognized that jurors may interpret the word “preclude” to mean “prevent.” Yet, it is not necessary for the jury to find that deliberation was “prevented” in order to find a reasonable doubt as to the existence of deliberation. Accordingly, the confusing language should be deleted.
Moreover, language which specifically relates to the prosecution’s burden of proof to the elements of premeditation and deliberation should be added. (See FORECITE F 8.20c.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, ‘ 15 and ‘ 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
NOTES
[Additional briefing regarding the ambiguity of the “precluding” language of CJ 8.20 is available to FORECITE subscribers. Ask for Brief Bank # B-659.]
F 8.20d
Premeditated And Deliberated Murder:
Requires More Than Specific Intent To Kill.
* Add to CJ 8.20:
A finding of first-degree murder based on premeditation and deliberation requires more than a specific intent to kill. In all intentional killings, the murderer is motivated to kill the victim. Hence, to convict a defendant of first-degree murder there must be evidence that demonstrates not just an intent to kill but the additional mental state of premeditation and deliberation.
Points and Authorities
It is well established that first-degree murder based upon premeditation and deliberation requires more than a specific intent to kill. (See People v. Alexander (83) 140 CA3d 647, 664 [189 CR 906].) Accordingly, when the defense theory is that there was a specific intent to kill but that intent was not motivated by premeditation and deliberation the defense should have a right to an instruction such as the one above which pinpoints that theory.
Moreover, language which specifically relates to the prosecution’s burden of proof to the elements of premeditation and deliberation should be added. (See FORECITE F 8.20c.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 8.20e
Deliberate And Premeditated Murder:
Jury Consideration Of Lack Of Motive, Furtiveness
Or Relationship Between Defendant And Victims
*Add to CJ 8.20 when appropriate:
The defendant in this case has introduced evidence for the purpose of showing that [he] [she] [had no motive to commit the killing], [did not commit any furtive conduct prior to or after the killing], [had no prior relationship with the victim]. You should consider such evidence, in addition to all of the other circumstances, in deciding whether the killing was willful, deliberate and premeditated. If from all the evidence you have a reasonable doubt whether the defendant willfully premeditated and deliberated, you must find that [he] [she] did not.
Points and Authorities
“Lack of motive is not only relevant on the issue of identification but also to the issue of premeditation and deliberation, and no reason appears why a defendant upon request should not be entitled to a specific instruction pointing out that lack of motive is a circumstance which may be considered by the jury in determining the issue of premeditation and deliberation. Similarly, lack of furtiveness and the relationship between the defendant and his victims are circumstances which may be considered in determining the issue of premeditation and deliberation.” (People v. Sears (70) 2 C3d 180, 189 [84 CR 711]; see also California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 3.3; FORECITE F 8.20b.)
A criminal defendant is entitled, upon request, to an instruction pinpointing the theory of the defense. (People v. Wharton (91) 53 C3d 522, 570 [280 CR 631].) Such an instruction may “direct attention to evidence from … which a reasonable doubt could be engendered. [Citation.]” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844].) Moreover, the trial court is required to “instruct the jury as to which party bears the burden of proof on each issue…..” (EC 502). Therefore, in a case where a theory of the defense is directed toward raising a reasonable doubt as to the existence of premeditation and deliberation, the defendant should have the right, upon request, to specifically instruct the jury as to the prosecution’s burden regarding the issue of premeditation and deliberation. (See e.g., CJ 2.91 and CJ 4.50; see also People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364] (defendant has the right to a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense”.)
The instruction above specifically relates the prosecution’s burden of proof to the components of premeditation and deliberation specified in CJ 8.20.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES:
See FORECITE F 2.06a as to whether consciousness of guilt exhibited after the killing may be considered as to the issue of premeditation and deliberation (that is, to the degree of guilt).